Legal Question in Disability Law in California

It is often a hot subject of debate in lawsuits, as to what is a protected disability under the ADA or the more employee friendly, California Fair Employment and Housing Act. The FEHA defines a physical disability, in Government Code, section 12926(k) as:

"(k) "Physical disability" includes, but is not limited to, all of

the following:

(1) Having any physiological disease, disorder, condition,

cosmetic disfigurement, or anatomical loss that does both of the

following:

(A) Affects one or more of the following body systems:

neurological, immunological, musculoskeletal, special sense organs,

respiratory, including speech organs, cardiovascular, reproductive,

digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

(B) Limits a major life activity. For purposes of this section:

(i) "Limits" shall be determined without regard to mitigating

measures such as medications, assistive devices, prosthetics, or

reasonable accommodations, unless the mitigating measure itself

limits a major life activity.

(ii) A physiological disease, disorder, condition, cosmetic

disfigurement, or anatomical loss limits a major life activity if it

makes the achievement of the major life activity difficult.

(iii) "Major life activities" shall be broadly construed and

includes physical, mental, and social activities and working."

Furthermore, the FMLA and the CFRA requires employers of 50 or more employees to allow qualified employees who suffer a serious illness, to take up to 12 weeks off.

While I cannot address your situation, specifically, it would be a good idea for you to consult with an experienced employment law attorney in your area, to review your case and explore your legal options.

As an employment law attorney, I would direct your attention to the California Family RIghts Act and the Family Medical Leave Act, but there are minimal requirements for each of these laws, so a personal consultation would be most beneficial to you.

If the employer employs more than 50 employees, the employer is obligated to grant up to 12 weeks of unpaid leave time for such matters as your surgery. (FMLA)

To determine whether you fall within the protection of the disability laws, I would need more information about your condition.

Please seek consultation from a local employment law attorney.

If and when you are denied legally protected leave, or are illegally discriminated or retaliated against because of requesting or taking the leave, then you can consider legal claims.

If your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA/CFRA maternity/medical leave when you are unable to work [or must care for an immediate family member] because of a �serious health condition� that is properly confirmed and documented by your doctor, continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The leave may be taken on reasonable intermittent basis if that need is properly documented by your medical provider.

If you are out longer than those guarantees, they can fire you.

Overriding those stated protections, just because you are on leave does not mean you can�t be terminated. You have no special exemption against lay offs due to business reasons. A company in downsizing can lay off a FMLA leave person, as long as they can show they aren�t targeting �because of the leave�. They are simply risking claims if they do.

If your company has a policy requiring they hold your job for you for a specific period of time while on disability, that is enforceable.

Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.

Now, if they violated those rules, contact me for the legal help you'll need. I'll be happy to do so. I've been doing these cases for over 20 years. An answer to your questions can only be given if the attorney knows all the relevant facts, which your posting does not provide.

Your upcoming surgery qualified as disability/serious medical condition within California Fair Employment and Housing Act (California's equivalent of federal ADA law but with greater reach and protection to employees). It's possible that you have a legitimate claim for disability discrimination and failure to accommodate as required by law, but this would require showing that the reason you were terminated was because of or in retaliation for taking time of or being disabled.

Thanks, and feel free to follow up.

Arkady Itkin

San Francisco Employment Lawyer

http://www.arkadylaw.com